Constitutional Law: Chap 2

federalism

division of govt powers between the fed and state gov *vert

separation of powers

horizontal

checks and

balances

nat govt (fed gov) and

government of the states

federalism can be split into

confederal and unitary

confederal

political submits possesses considerable authority autonomously from the central govt

unitary

a centralized govt possess nearly all governmental authority; if subunits exist they are supervenient to the centralized govt

consti specifically enumerates, lists, the power of the fed gov

art I II III created congress, presidency, judiciary

necessary and proper clause

gives congress the power to pass any laws needed to do its job

• art I

• laws do not have to be strictly required

• supreme court says congress can pass any laws needed to do its job

art I commerce clause

provides that congress has the power to regulate foreign and interstate commerce

art VI supremacy clause

establishes that US consti, fed law and national treaties are the supreme law of the land

• supreme court of us is final interpreter of fed law

13-15th amend: civil war amendments

• increased fed authority

• 14th - protecting the due process and equal protection rights of all individuals in US

duel federalism

the theory that the national govt and the state govts are coequal sovereigns

hierarchy federalism

hold that the fed govt is supreme in the fed statues relationship

cooperative federalism

increased interaction between the state and national govt in an effort to effectively regulate and administer law program → political branches exec leg

presumption doctrine

state laws are invalidated if they interfere or conflict w national legislation

dormat commerce clause doctrine

state laws that interfere w interstate commerce, even if largely unregulated but the fed govt

intergovernmental immunity doctrine

the national govt possesses greater immunity from states reg than the states do from fed reg

national powers ex

• coining money

• foreign diplomacy

state power ex

• providing education

• licensing most professions

concurrently held ex

• taxing citizens

• punishing crimes

powers denied by both

• expost facto laws

• bills of attainder

national executive

conducting foreign diplomacy and negotiation treaties

police powers

states retain exclusive control over their internal matters

• public health (ex. shelter in place, social distancing)

fed gov powers:

immigration, broader control, customs

us consti grants

fed govt authority over interstate, international and NA commerce

states generally hold authority iver

local business

if the authority over a policy has been delegated to the fed or the states govt,

the delegatee is generally permitted to engage in regulation of any type (civil, admin, crim)

civil rights + bill of rights

13-15 amnd incorporates

bill of rights

limitation upon the fed govt, not the states

fed govt uses economic coercions to

impose will

federalism v sep of powers

branches come into contact as a result of many

check and balances found in consti

branches come into contact as a result of many check and balances found in consti: selecting govt officials

• congress

  • HoR: elected by people

  • senators: chosen by states leg

• prez: electoral college

• fed judges: nominated by prez, confirmed by senate

examples branches come into contact as a result of many check and balances found in consti

1. congress enacts laws checked by presidential approval and judicial review, prez can veto and congress can override w 2/3

2. president conducts foreign affairs and resonates treaties check by: (congress) senate must ratify treaties

3. article III judges checked by: nominated by prez + senate approval

consti (highest)

each state has their own (highest form of law for state law subjects)

• 9th + 10th certain authority belong to the states

highest court in each states

final arbiter of state law

public law/statues

laws enacted by congress (organized by subject matter into the US code)

• each state has a leg that makes law

  • other lawmaking bodies at local level: city council, school boards

ordinances

local lases

limited lawmaking authority

prez executive order

• has authority of statue

• published in fed register

• inherently exec/congress gave authority

• daily operations of govt

administrative rulemaking

congress often empowers admin agencies to create rules (regulations) to enforce their mandates

• could have authority of leg

• always subordinate to leg

stare decsis et non quiera movera

stand by precedents and do not disturb settled points

nulla poena sine lege

there shall be no crime if there is no statue

judicial decisions interpreting consti and

statues are another form of law